Deejayzoo v. Kitsch: Federal Circuit Appeal Dismissed After 411 Days
Deejayzoo, LLC appealed a shower cap patent infringement action against Kitsch, LLC to the Federal Circuit, asserting a design patent (USD775792S) and a utility patent (US10021930B2). The appeal was dismissed for failure to prosecute — ending the challenge on procedural grounds with no merits ruling, 411 days after filing.
Shower cap IP dispute ends at the Federal Circuit on procedural grounds
Deejayzoo, LLC — a designer and seller of fashion shower caps — filed this Federal Circuit appeal on January 26, 2024, challenging a lower court outcome in an infringement action against competitor Kitsch, LLC. The asserted intellectual property comprised two patents: design patent USD775792S (covering the ornamental appearance of a shower cap) and utility patent US10021930B2 (covering functional aspects of shower cap construction). Kitsch’s shower cap products were identified as the accused products.
The appeal was terminated on March 12, 2025, when the Federal Circuit granted Kitsch’s motion to dismiss for failure to prosecute, pursuant to Federal Circuit Rules 25(h) and 31(d). These rules provide for dismissal where an appellant fails to comply with briefing requirements or filing deadlines. Critically, the court issued no ruling on the merits of the underlying infringement claims, meaning the patent validity and infringement questions raised by Deejayzoo remain unanswered by this tribunal.
The 411-day duration before a procedural dismissal is notable, suggesting the case may have experienced extended delays in appellant briefing compliance rather than an early abandonment. The cost order — each side bearing its own — is consistent with a procedural rather than merits disposition, and does not signal any finding of fault or bad faith by either party. What drove Deejayzoo’s failure to prosecute, whether strategic, financial, or logistical, is not disclosed in the public record.
Filing to Appeal Dismissed in 411 days
411 days — above the Federal Circuit median for procedural dismissals
Appeal dismissed for failure to prosecute: what this means for both parties
Failure to prosecute: a procedural end with no merits ruling
Federal Circuit Rules 25(h) and 31(d) empower the court to dismiss an appeal where the appellant fails to meet filing or briefing obligations. This dismissal extinguishes the appeal entirely but does not adjudicate the underlying infringement or validity questions. The lower court record and any judgment entered there remain the operative legal posture — the Federal Circuit has simply declined to review.
No merits adjudicationDeejayzoo loses appellate path without a ruling on the patents
Deejayzoo’s failure to prosecute the appeal forfeits its opportunity to have the Federal Circuit review the lower court’s disposition of its infringement claims. Without a merits ruling, Deejayzoo cannot establish precedent on USD775792S or US10021930B2 through this proceeding. Whether the underlying lower court judgment now stands fully against Deejayzoo depends on what that judgment was — that detail is not resolved in this appellate record alone.
Appellate rights forfeitedKitsch secures dismissal — infringement claims do not advance
Kitsch successfully moved for dismissal, halting Deejayzoo’s appeal at the Federal Circuit level. With no merits ruling, Kitsch is not burdened by an adverse appellate finding on infringement or validity. The cost order — each side bearing its own — means Kitsch recovers no legal costs from the dismissal. However, the underlying patents remain in force and could theoretically support future enforcement actions if Deejayzoo elects to refile or pursue other avenues.
Dismissal obtained, no costs awardedPatents survive but enforceability signal is weakened by inaction
A procedural dismissal for failure to prosecute sends a cautionary signal to the market: Deejayzoo’s patents were not vindicated at the appellate level, but they were also not invalidated. Competitors in the fashion accessories and shower cap category should note that USD775792S and US10021930B2 remain live assets. Any party designing around or competing with Deejayzoo’s products should conduct FTO analysis, as the patents’ enforceability has not been judicially extinguished.
Patents live — enforceability uncertainFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Deejayzoo, LLC | Company | Fashion shower cap designer and IP licensor — holder of USD775792S and US10021930B2Search in Eureka ↗ |
| Defendant | Kitsch, LLC | Company | Kitsch, LLC — lifestyle accessories brand, maker of the accused shower cap productsSearch in Eureka ↗ |
| Plaintiff counsel | Erik James Dykema | Attorney | Counsel for Deejayzoo, LLCSearch in Eureka ↗ |
| Defendant counsel | Marc Lorelli | Attorney | Counsel for Kitsch, LLCSearch in Eureka ↗ |
| Defendant counsel | Mark A. Cantor | Attorney | Counsel for Kitsch, LLCSearch in Eureka ↗ |
| Defendant counsel | Rebecca Jamie Cantor | Attorney | Counsel for Kitsch, LLCSearch in Eureka ↗ |
| Defendant law firm | Brooks Kushman PC | Law Firm | Representing Kitsch, LLCSearch in Eureka ↗ |
| Presiding judge | Judge N/A | Judge | Court of Appeals for the Federal CircuitSearch in Eureka ↗ |
Official order — verbatim text
The Federal Circuit’s order grants Kitsch’s motion and dismisses the appeal under Rules 25(h) and 31(d) for failure to prosecute, with costs to be borne by each side. This is a purely procedural disposition — the court applies no standard of review to the merits and makes no finding on infringement, validity, or claim scope for either USD775792S or US10021930B2. The symmetrical cost order is typical where dismissal results from appellant inaction rather than a finding against either party on substance. The lower court record thus remains the final substantive disposition of the infringement claims.
USD775792S & US10021930B2 — Shower cap design and utility patents
USD775792S is a design patent covering the ornamental appearance of a shower cap, filed under application US29/504909. Design patents protect the distinctive visual characteristics of a product rather than its functional attributes, and infringement is assessed under the ‘ordinary observer’ test. US10021930B2 is a utility patent (application US14/837063) covering functional aspects of shower cap construction — its claims define how the cap is made or operates, offering broader and more technically complex protection than the design counterpart.
The combination of a design and utility patent on the same product category — fashion shower caps — creates a dual-layer IP barrier that is strategically significant for the lifestyle accessories sector. Competitors must design around both the visual appearance of Deejayzoo’s cap and its functional construction claims. Neither patent was invalidated or adjudicated in this Federal Circuit proceeding, meaning their full claim scope remains available for future enforcement. For brands active in the beauty accessories and personal care categories, these patents represent a non-trivial freedom-to-operate concern.
Should you run an FTO against USD775792S and US10021930B2?
Any company developing, manufacturing, or commercialising shower caps or closely related personal care accessories in the US market should conduct a freedom-to-operate analysis against USD775792S and US10021930B2. The Federal Circuit dismissal in this case provides no safe harbour — both patents remain in force, and the enforceability of their claims has not been adjudicated. This is particularly urgent for brands that compete directly with Deejayzoo in the fashion or functional shower cap segment.
PatSnap Eureka’s FTO Search Agent enables R&D and product teams to map claim scope against USD775792S and US10021930B2 rapidly, identify prior art that could support an IPR petition, and benchmark Deejayzoo’s full portfolio for related filings. Given the dual design-and-utility structure of this IP position, Eureka’s ability to analyse ornamental and functional claims in parallel makes it well suited to the FTO challenge this case presents.
Run a freedom-to-operate analysis on USD0775792S to assess your product’s exposure
Run FTO in Eureka →Similar Federal Circuit shower cap & fashion accessories patent appeals
Explore Federal Circuit cases involving design and utility patent assertions in the personal care accessories sector, including procedural dismissal patterns comparable to Deejayzoo v. Kitsch.
What this case signals for the fashion accessories IP landscape
A procedural Federal Circuit dismissal leaves patent risk unresolved — and creates strategic ambiguity for the entire shower cap and lifestyle accessories sector.
Procedural dismissals do not extinguish patents — FTO risk persists
USD775792S and US10021930B2 were never invalidated by this proceeding. Companies competing in the shower cap and fashion accessories space should treat these patents as live enforcement risks. A lapse in appellate prosecution by the patentee does not equate to abandonment of the underlying IP asset.
Failure to prosecute signals potential enforcement fatigue — monitor for refiling
When a patentee’s appeal is dismissed for failure to prosecute, it often signals resource constraints or a strategic reassessment rather than a deliberate concession. IP counsel should monitor Deejayzoo’s docket for any new district court filings or IPR actions, as the underlying patents could be reasserted against Kitsch or other competitors.
Deejayzoo v Kitsch — key questions answered
The Federal Circuit dismissed the appeal for failure to prosecute under Rules 25(h) and 31(d), meaning Deejayzoo failed to comply with the court’s briefing or filing requirements. No merits ruling was issued on the infringement or validity of shower cap patents USD775792S or US10021930B2.
Deejayzoo asserted two patents: USD775792S, a design patent covering the ornamental appearance of a shower cap (application US29/504909), and US10021930B2, a utility patent covering functional aspects of shower cap construction (application US14/837063). Both patents remain in force following the dismissal.
No. A dismissal for failure to prosecute is a procedural termination that does not adjudicate validity or infringement. USD775792S and US10021930B2 were not invalidated by this proceeding and remain active patents that could be asserted in future enforcement actions.
When the Federal Circuit orders each side to bear its own costs, neither party recovers litigation expenses from the other. This is typical in procedural dismissals where no merits finding is made and no party has been adjudged to have acted unreasonably or in bad faith. It does not reflect on the strength of either party’s underlying position.
Rule 31(d) of the Federal Circuit Rules provides a mechanism for dismissing appeals where the appellant fails to file required briefs by prescribed deadlines. Invocation of this rule in Deejayzoo v. Kitsch indicates Deejayzoo did not meet its briefing obligations, prompting Kitsch to move for dismissal. It is a compliance-based rather than merits-based ground for terminating an appeal.
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